Judge orders San Jose, mayor to list withheld public records

San Jose will provide a basic list of all the records it’s withholding to San José Spotlight—months after city officials refused to say how many documents have not been released under the public records act.

San José Spotlight and the First Amendment Coalition sued the city and Mayor Sam Liccardo for improperly withholding emails in February. In its first hearing of the case Wednesday, Santa Clara County Superior Court Judge Julie Emede ordered the city to produce a list including details of all the withheld documents.

But the list, due to the court in 30 days, will only include the dates, form of communication, an indication of whether the communications have any attachments and the reasons the documents were withheld.

San José Spotlight’s attorney Karl Olson argued for the list to also include the senders, recipients and topics of the communications. Without that information, the court has no basic understanding to decide whether the documents are properly withheld, he said.

“It is not helpful for the city to provide a declaration—without reference to any particular documents—saying everything I did is deliberative process, or every document I have is attorney-client privilege or a preliminary draft,” Olson said.

The Wednesday ruling came after this news organization revealed how the city improperly withheld public records numerous times, redacted information without adequate reasoning and failed to conduct thorough searches for records. The lawsuit also alleges the city routinely skirts public records law—preventing the public from being able to scrutinize city officials’ interactions with lobbyists and special interests.

San Jose has denied all allegations in the lawsuit.

Kathryn Zoglin, senior deputy city attorney, argued San Jose has no obligation to produce a privilege log with such details for the lawsuit. She added the city is ready to produce a more simplified list to justify the documents it’s withholding.

“What is the purpose of (a log)?” Zoglin said, adding it has not been useful in previous lawsuits. “If there’s some reason for a log other than just busy work on the city’s part, it would be a different case.”

Olson argued it’s important to know who Liccardo is talking to, pointing to emails obtained by San José Spotlight that revealed how Bloom Energy Executive Carl Guardino was able to have a direct say on a city policy benefitting his company. The emails show Guardino and Liccardo’s office were hashing out the policy language just hours before a Dec. 1, 2020 City Council vote, and the language Bloom Energy helped write was added almost verbatim into the law the city ultimately adopted.

“For (the city) to say that it’s categorically off limits to disclose who the mayor talks to is inconsistent with the law and it’s inconsistent even with the city’s own municipal code,” Olson said, pointing to the city’s requirement of lobbyists to disclose their communications with city officials. “Openness in government is essential to the functioning of the democracy.”

Judge Emede decided to order a basic list this week, but added the court might order a privilege log later on.

“Mr. Olson, I completely understand your point, but I’m also very mindful of the cases that talk about the way our democracy works and that disclosure of certain information could have a chilling effect on people who might be willing to engage in government in the future,” she said. “What I’m trying to do is find a balance here.”

The city has until Sept. 26 to complete its list of withheld documents. The court will have another hearing in November to determine whether a full privilege log is needed and whether Liccardo will be deposed on his private email use.

Contact Tran Nguyen at [email protected] or follow @nguyenntrann on Twitter.